
Author 



Title 



Imprint. 



18—47372-2 apo 



Counting the Electoral Votes. 



SPEECH 



OF 



HON. NATHAN T. CARR, 



OF INDIANA, 



IN THE 



HOUSE OF REPRESENTATIVES, 



January 26, 1877. 



1877. 



F 



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1 

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^1 



SPEECH 

OF 

HON. N A T H A X T . CARE. 



Tlip House having under consideration the bill (S. Xo. 1153) to provide for and 
regulate the coimtijis of votes foi' President and Vice-President, and the decision 
of questions arising thereon, for the term commencing March 4, A. D. 1S77 — 

Mr. CARR said : ^ 

Mr. Speaker : The subject presented by tbisbill for our consideration 
is fraught with an importance which has never been so vividly real- 
ized as now. Heretofore in the political history of our country the 
results of popular elections have been so decidedly and decisively for 
one or the other of the opposing candidates, that the power of Con- 
gress in canvassing the result has been more a matter of form than a 
necessity, and being such only, the manner and extent of exercising 
it has been comparatively of minor importance, and therefore the 
adaptability of the machinery provided by our fathers for this pur- 
pose has never been fully tested and its inadequacy discovered. At 
this time, when the votes of undisputed States leave the opposing 
candidates for the presidential office so nearly equal and each so close 
to an election, with a disputed and undisposed of vote yet to be counted 
sufficient to elect either — under circumstances, where a conflict of 
State authorities or local claims renders a Federal adjudication of the 
matter absolutely indispensable, and when that decision shall deter- 
mine the supremacy, perhaps the future existence, of one of the two 
great political parties into which the people are divided, we come to 
examine the constitutional machinery in detail, it is found to be in- 
adequate or imperfectly understood. This is not a new discovery, but 
one that has long been known. Even as early as 1793, the first year 
after the adoption of that instrument, it was thought the Constitu- 
tion provided expressly no mode of examining the votes for Presi- 
dent and Vice-President, and to provide for this deficiency the fol- 
lowing resolution was adopted by the House : 

Hesolved, That a committee he appointed, to join such committee as may be ap- 
pointed by the Senate, to ascertain and report a mode of examining votes for Pres- 
ident and Vice-President, and of notifying the persons who shall be elected of their 
elections, &c. 

In which resolution the Senate concurred and the committee 
was appointed. At each subsequent presidential election the same 
provision was made. Mr. Barbour at one time gave notice that he 
"would at some fixture time propose a law i)rovidiug a permanent mode 
of discharging this important function ; but as at no subsequent pe- 
riod this deficiency assumed vital importance, he never carried his 
determination into successful action. In the year Ic-OO a bill was in- 
troduced and passed the Senate which aimed at the establishment of 
a mode which should exist as a permanent law, but this eflbrt failed 
in the House and never became a law. So, while the subject before 
Its to-day is not a new one, and though this is not the first consider- 



ation which it has received in the halls of Congress, vet we are now 
called upon to consider it nnder new coniiilicatiuns, which press upon 
us an ininiediate decisive action, which we cannot avuid if we would. 

Under the wise ]irovision of our system of fioverniuent, which re- 
turns to the people at stated periods all autlioriry and the power to 
designate by the ballot their public servants and the policy which 
shall prevail in the administration of their guvernniental aH'airs, tho 
people have met at the polls, discharged that higliest and most sacred 
duty, and expressed their determination. Bur by a system of fraud 
this determination of the peojile is covered witli clouds of uncertaiu- 
ties, by which it is hoped by the conspirators and feared liy the hon- 
est masses that the peojjle are to l>e robbed of their choice of chief 
executive and thej^ine of policy which shall govern them in the fu- 
ture. They see in this attempt an attack upon the citadel of their 
liberties, in the success of which will be destroyed the sacredness of 
the ballot-box — the safety of our free institutions, the staldlity of our 
government. They feel, justly feel, that uudersuch increasing schemes 
of professional tricksters every feature which has rendered this Re- 
jiublic the source of their protection and the object of their pride is 
rapidly drifting away, and nothing but the integrity of their Kepre- 
sentatives or their own strong arms can snatch from the terrible 
vortex into which it is now plunging that enterprise of self-govern- 
ment V)egun in the prayers aiul established in the blood of our fathers. 

In this extremity they call upon us, and we are required to exercise 
all the power which wisdom may lind Congress to possess to pre- 
serve to them their liberties and the substance as well as the form of 
their Government. This duty we must perform fearlessly and as pa- 
triots, not as partisans. Approaching, then, the imiierative but dan- 
gerous task, we are met upon the threshold of the lield for examina- 
tion with two questions which demand unequivocatlng and unmis- 
takable answers. Here we can no longer shun responsibilities and 
avoid the criticisms incident to clearly-detined positions merely by 
repeating the exitression which demagogues of b-oth ]iolitical parties 
use to create a false conlidence in tiieir wisdom and faith in their lidel- 
ity: "We will do that wiiich is right." " If Congress has any power 
over the subject, your rights shall be protected." The questions now 
to be speedily and decisively answered are: 

First. Has Congress at the time of counting the electoral vote any 
power to deterniiue what the true voice of the several States Las 
been * And if (lie allirmative of this be found, then, 

Second. How shall Congress exercise its power of canvassing the 
electoral vote? 

HAS CONGRESS TMF. POWICK ? 

The present constitutional ]»rovision on this subject was adopted 
in ltffl4, ami almost continuously since that time there have V)een 
those of our citizens who have maintained the position that Congress 
did not possess such jtowers, and among these were some few wiioso 
learning, experience, and jiosition entitle their opinions to more tlian 
arbitrary confutation. Uf such were Kandolph of ^■irginia and 
Pinckney of South Carolimi. In l^vil Mr. Kandoli>h took the ground 
that the States respectively, and not Congress, had the i)ower of de- 
termining how the vote shmild be cast for President and Vice-Presi- 
dent ; but this view was the result of that gentleman's extreme views 
upon tho then growing doctrine of State rigiits; and he ailvaneed 
the ])ro]iosition as an alistraet ]iriiieiiile, wiiieli as such cannot Vio 
denied as correct ; but Mr. Kandolph ne\ er went so far as to say that, 
in case where there was a conllict of State authority and opposing votes 



had been returiietl. Congress lind no judicial power to determine for 
itself the genuine from the false vote. So, when in h"^().j Mr. Doo- 
little in the Senate took the ground tliat Congress had no power to 
reject the vote of certain States, it wouhl not be a legitimate couclu- 
siou from his argument to say that he denied the right of Congress to 
determine between conflicting votes from the same State. Mr. Pinck- 
ney at no time expressed himself as denying the right of Congress to 
adjudicate between two apparent claims, and he sim))ly avoide<l this 
question by asserting that such an emergency would never arise. 
His views were that Congress should have as little power as possible 
in determining the result of a presidential election ; but it can no- 
where be found where he or any other State-rights man has ever 
expresslj' denied Congiess the power and right of so conducting the 
canvass of electoral votes as to give the true force and effect to the 
will of the people of each State as expressed at the ballot-box. 

While the many debates aud votes recorded of Congress have dis- 
closed the names of but very few fathers who have ([uestioned the ex- 
tent of the power of Congress over this subject, the names of those 
who have at all times maintained the right of Congress to exercise 
a supervisory power over the electoral vote are many and distin- 
guished. Among them stand conspicuously Jefl'erson, Barbour, Ma- 
con, Clay, Archer of Maryland, Livermore, Webster, Grundy, Wright, 
Bigler, Trumbull, Washlnirn, Douglas, Cass, Crittenden, Lincoln, 
Edmunds, Sherman, 13. F. Butler, Hoar, Morton, and others. 

Mr. Jefierson is not reported in tlie annals of Congress as having 
expressed himself upon this subject, but all his jjrivate correspondence 
plainly indicate that he so construed the Constitution as to give Con- 
gress this power ; and in 1805, as President of the Senate, in counting 
the vote, he said : 

Ton will uow proceed, gentlemen, to cotint the votes as the Constitution and 
laws direct. 

Mr. Barbour, in lH-21, plainly declared Congress to have the power 
of counting or rejecting the electoral vote of States, by reporting, as 
chairman of a joint committee, the following resolutions : 

Jiesolved, That the two Houses shall meet in \\w House, at twelve m., on "Wednes- 
day next, and the Piesident of the Senate shall preside ; that one person .shall be 
appointed teller on the part of the Senate to make a list of the votes; that the 
result shall be delivered to the President of the Senate, who shall announce the 
state of the vote. 

Resolved. If any olijection be made to the vote of Missouri, and the countlnjc or 
not couutins: of which shall not change the result of the election, in that ca.se it 
shall be reported by the President of the Senate as follows: "If the vote of Mis- 
souri be counted the result would be, for A B — votes ; if not counted, for A B 
— votes ; but in either case A B is elected." 

Mr. Macon recognized this right of Congress by accepting the posi- 
tion of teller to count the electoral vote on two different occasions, 
the last one being in the year 1817, when he not only acted as such 
but also rc))()rted the joint rule giving the power to Congress; aud 
thi.s, too, when Congress a.ssumed the right of objecting to the count- 
ing of the State of Indiana. 

Sir. Clay took part in the deliberations of Congress in disposing of 
the vote of Missouri in 18"il, thereby recognizing this power to reside 
in that body ; while in 1837 he was a member of the committee on the 
part of the Senate to report " a mode of examining the votes for Presi- 
dent and Vice-President"' and "to inquire into the expediency of as- 
certaining whether atiy votes were given at the recent election con- 
trary to the prohibitions contained in the second section of the second 
article of the Con.stitutiou, aud if any such votes were given, what 



ought to be doiH' with rlnin ;" aiitl which committee exercisetl the 
right to make sucli iiuiiiiry. ami reported back to Cungrcss that "this 
provision of tlie Coii>titiui(iii, it is l)flievcd, excludi-s ami disqiialilies 
deputy postmasters from the appoiutmeiit of electors, and the dis- 
(Hialilicatir)ns relates back to the time of the appointment, and that 
a resignation of tlie othce of deputy jiostmaster after his apiiointment 
as sucli elector would not entitle him to vote as elector under the 
Constitution." 

In 1S20. Mr. Clay sud : 

The Coiistitutinii niiuinil »f tlie two Houses to assemble au<l perform tbo high- 
est <lnty tliat coulil dcs-olve on a imblic body: to ascertain who liail been elected 
by the people to administer their national eouccrus. In ease of votes eomuiji for- 
ward which eould not be counted the Constitution wa,s silent, but fortunately the 
end in that case carried with it the means. The two Houses were calbd in to enu- 
merate the votes for President and Vice-President. Of course they were called on 
to decide what are votes. 

Mr. Archer, of Maryland, in 1821, said : 

^ I am not a little surprised at the ground takcii by some gentlemen, that the House 
of Reinesentatives had no power to pass judi:ment on the returns. I am now and 
alwavs have been of the .same opinion, that, wherever was hidged a power to re- 
ceive a power, there also was the power to pass a judgment on the vaUdity of the 
returns. 

In 1821, Mr. Livermore, of New Hampsliire, objected to counting 
the vote of Missouri, on the ground that it was not a State of the 
Union; by which it is evident he held that powt-r to be vested iu 
Congress. 

Daniel "Webster, who .justly earned and deserved the title of '• the 
constitutional expounder," wa.s a member of the joint committee to 
rt])ort a mode of coiiiiting the electoral vote in I'^'iO, and the joint 
rule coiitaiiieil this signitieant exi>ressiou : 

If it shall a]ii>ear that a choice has been made agiceably to the Constitution of 
the United States. 

Mr. Grumly was several times a member of the joint committee 
between tiie'two Houses to report a joint rule for counting the vote, 
and made the rejiorr iu ])ei>(in in l-:!?, wherein tiie committee eut> red 
<inite extensively into tlie eligibility of several electoral votes. 

Sila.s Wright and liigltr always recognizfd this power in Congress, 
and repeatedly acted as tellersto do the countitig. and ujnm joint 
committees to report a rule for that purpo.se; Mr. Higler making a 
rei)ort as teller in l-^fw omitting the votes of Wisconsin pursuant to 
a resolution of the two Houses. 

Our later-day statesmen have been no less explicit in their recog- 
nition of this iiowcr. Mr. 'rrumbiiU and K. R. Wasliburne wereof tho 
joint coiiimittcf who reporte<l llic celebrated twenty-second joint rule 
in IHtif), wherein this jiower of Congress was not only allirmod, but the 
manner iu which it should be exercised was pointed out. 

On the 10th day of February, of the same year, Mr. Lincidn sent a 
message to the two Houses of Congress in explanation (vf his signing 
a joint" resolution ex<luding the vote of certain States for President 
ill which he says: 

Inhisvi.'W. howev.r. the twoHouscsof Concre.ss. convened under the twelfth 
article of the('oii.-*titiition. liave ample power toexdude fiom couutiuKuU electoral 
votes deemed by them to be illei:al. 

Mr. Morton at the last session of Congress said, iu the course of an 
argument ujion this fpiestion : 

You must have .Mome tribunal to settle that dilliculty. (the ditruulty arising when 
two sets of eliclonil votes arc pitseutetl,) and what tiilmnal is .taf.r than the two 
Houses of Conj;re.s». 



Aud again : 

There can be under the Constitution no other tribunal to decide on that (the 
same question) or any other question arising in the course of countinj: the votes. 
The duty is imposed on the two Houses of Congress. They alone can pei-form it. 

Mr. B. F. Butler, Representative Hoar of Massachusetts, and Sen- 
ators Edmuxds and Siiekman, have all recognized and affirmed this 
right of Congress, by having ottered resolutions objecting to count- 
ing the A'otes of certain States in the year 1-^73. 

The number of eminent statesmen thus hurriedly mentioned is suf- 
ficient to establish the fact that this power of Congress has l)ecii un- 
interruptedly recognized by our wisest and best men since the foun- 
dation of our Government, and here we might rest the proposition in 
safety ; but still other incontestable proof crowds upon us. The fact 
exists beyond question that Congress has exercised this power ever 
since the ratification of the Constitution, and particularly since the 
ad()i>tion of the twelfth amendment. 

In 17'j:{ the following joint resolution was adopted by both Houses : 

That the two Houses shall assemble in the Senate Chamber on "Wednesday next, 
at twelve o'clock, that one person shall be appointed atelier on the part of the'Senato 
to make a list of the votes as they shall be declared, that the result shall be de- 
livered to the President of the Senate, who shall announce the state of the vote and 
the persons elected to the two Houses assembled as aforesaid ; which shall be 
deemed a declaration of the persons elected President and Tice-Presideut, and, to- 
gether with a list of the votes, shall be entered on the Journals of the two Houses. 

A precisely similar resolution was adopted in the year 1797, and a 
like one in 1801, but with the following additional clause : 

And if it shall appear that a choice hath been made agreeably to the Constitution, 
such entry upon the Journal shall be deemed a sufficient declaration thereof. 

This resolution was re-adopted quadrennially until the year 1865 ; 
but in 1821 an additional provision was made for the State of Missouri, 
as follows : 

Resolved. That if any objections be made to the vote of Missouri, and the count- 
ing or omitting to count which shall not essentially change the result of the elec- 
tion, in that case it shall be reported by the President of the Senate in the following 
manner : Were the votes of Missouri to be counted the result would be for A B 
for President of the United States votes. If not counted, for A B for Presi- 
dent of the United States votes. But in either event A B is elected President 

of the United States. And in the same manner for Vice-President. 

In 1837 the same provision was made for counting the vote of the 
State of Michigan. 

The first section of the twenty-second joint rule, adopted in 1865, 
was not unlike those of former years, but the second section pointed 
out and determined the xu'ecise manner in Avhich objections to count- 
ing the vote of any State should be disposed of. This joint rule of 
1865 was used in that and the years 1869 and 1873. 

Thus the views of our best statesmen during all the preceding 
years of our history, and tlie uninterrupted precedents of Congress 
itself, set forever at rest all <lispiites upon the question, and clearly 
establish in Congress the right to count the electoral votes of the 
States. 

The next branch of the question to be discussed is to what extent 
can that power be exercised.^ Here again both the expressed views 
of our statesmen and the precedents established by Congress bring 
us an answer neither equivocal nor doubtful. That it can in(|uire 
into the legality of an electV)ral vote because of the ineligibility of 
the elector Henry Clay was clear in his convictions, and that it had 
a like power over everj^ question which might be suggested as to the 
electoral vote is proven conclusively by the fact that in 1837, while 
the Senate was considering the joint rule for counting the electoral 



rote for that year, be moved and Lad inserted as an amendment 
thereto the following significant language : 

Also, to inqnire into the espedioncy of asrertaininj whether any votes were 
piveu at the recent election contrary to the prohibition contained in the second 
section of the second article of the Constitution, and, if any sach vot«8 were given, 
vhat ought to be done with them. 

In 1820 he said : 

In the case of que.stionable vote.s coniintr forward the Con.stitution was silent aa 
to their bt-iuj: counted , but fortunately the end in that ca.se carne<l with it the 
uean.s. The two Houses were called upon to enumerate the votes for President 
and Tice-Presideut. Of course they were called on to decide what are votes. 

^ Mr. Archer, of Maryland, at that time also said, in speaking of the 
power of Congress : 

"Wherever was lodtred the power to receive a return there was also the power to 
pa.ss judgment on the validity of that return. 

Mr. Nicholas, in ISOl, in a report to Congress upon that question, 
said : 

The vacation of a ballot composed of sound and defective votes ought to be the 
result of uniform principles : it ought to take place on all occa.sions where a dis- 
crimination cannot be made or on nime. Nut to vacate such l)allot. but to permit 
the election of a Chief Magistrate to be carried on anj- occasion by the aid of one 
or more defective votes, would be to hazard in most eminent degree the peace of 
Ihe Union. It is of the last imi)ortance to the happiness of the people of the United 
States that a complete conviction shouliljirovail at all times that tlie person who 
maybe elected Chief Magistrate of the Union ha.s been really elected by electors 
duly ami really appointed of those having competent authority for that purpose. 
It were ])ainful to anticipate the conseuueuces which would too probably attend 
» dis\>uted election to the Presidency. Those cousequeuces might be more calam- 
itous tlian can be foreseen. 

At the time of the adoption of the twelfth amendment, Congress 
passed a law to carry it into etlect, which contains the following sig- 
nificant provision : 

But tho.se certificates only of votes given for President and Vice-President of 
the United State.s shall be oiiened by the President of the Senate for the purjwse 
of being counted which shall contain tUe list of votes given in conformity with 
the Constitution as in force on tlie ilay fixed by law for the meeting of the electors 
by whom the said votes shall have been given. 

And it was in pursuance of this law and the Constitution that in 
the year l^.")?, while counting the electoral vote, Hon. .Joliii Critten- 
den in the House oll'ered the following resolution, as indicative of 
Lis opinion : 

Jiesolved h;i the Senate ni\d ITousi' of Rfjyresentatires of the United Slaten of A merica 
in CiingrcKn agteiiihled. That the electoral vote of the State of Wisconsin in the late 
presidential eleet ion, being uiven on a day dillV-reiit from that jireseribeil by law, 
•was therefore null, and ought not to liavi-'beiMi admitted or included in the count 
of electoral votes given in the late presidential election. 

In 1865, while discussing this question, Hon. John P. Hale remarked : 

It is the dictate of the plainest common sense, iude|)endeut of the constitutional 
provision, that then- iiiu^t of necessity l>e a power residing somewhere to preside 
over, rectify, and -.'oveni this wliole tiansaetioii: and. although it would have been 
wise, in my humble Judgment, for Congivss to have passed this n-solution preced- 
ing the jiresidential ideetion. it by no means follows that it may not do it now. 
Thi.s law is not subject to the reproach of being a retrospective or retroactive act. 
Ongress does not propose to .say tliat any State shall not express its oiiiiiion. All 
that Congres.s )iroposi -> to say now is that, tliese States Iteins: in a condition whi-re 
no valid, no constitution. il election was held, their votes shall not be counted, and 
tf we cannot do that it seems to mo that we are powerless to do anything. 

It may now lie important to oxamine how this snlijctt has lieon 
viewed l»y tho.se slalesiui-n who are still living ami wlio are again 
palled upon to determine tiiis grave <iuestion. In examining tiie de- 
bates ol Congres.s for the expre&^siou of those still ou the Llieater of 



action vre first fall upon the declarations of Mr. I5ouT\VKr-L, who, in 
18G5, said : 

The counting of tlie votes unquestionably is to bo "iu the presence of the two 
Houses." 

Have the two Houses power to do what by the Constitution is unavoidably made 
the duty of somebody to do, to see tnat the votes which are counted are leal votes ? 
By that I mean whether what is written upon the paper ex])re.sses the opinion 
•which the people have given. Not only have the Senate and House of Represen- 
tatives the power, but there is no other departnicut of the Government that is 
clothed with that power. 

Senator Coxklixg, in 1873, emphatically declared : 

But I go further th.an to maintain the naked power of Congress to inquire. I in- 
sist that we can utilize the result of the inquiry, and employ the fact.s in our .action 
upon counting or refusing to count electoral votes for President or Yice-Presideut. 

In the year 1873 Mr. Boutwell said : 

I concur, therefore, most heartily in what the Senator from Xew York has said, 
that there ought to be a very careful investigation of this question, iu order th.at, 
so far as we have the legislative power, if we have it at all — and I think we have — 
we may provide in the constitutional way for ascertaining what the will of the 
people of the various States may be from time to time, in respect of the election of 
a Chief Magistrate. 

We might continue like quotations from distingui.shed statesmen 
who have maintained that this power is vested iu Congress, lor hours, 
but I forbear. 

Thus our owu constructlou of the Constitution, the coustruction 
which has universally beeu put upon it by the practice of Congress, 
the laws passed to carry it into execution, and the views expressed 
by our earlier and latest statesmen, impel us to the irresistible con- 
clusion that Congress .shall not only count the electoral vote, but that 
it posses.ses the undoubted judicial power to determine what are and 
what are not electoral votes ; even to the extent of excluding illegal 
and unconstitutional ones. 

HOW SHALL THE TOWER UE EXERCISED. 

The next question which presents it.self in the consideration of this 
.subject is : In what manner shall this power be exercised ? The pecu- 
liar phraseology of that iustruuieut is such as has given rise to many 
theories, and as many suggested plans. The only part of the Consti- 
tution touching directly upon this important question is as follows: 

The President of the Senate shall, in the presence of the Senate and House of 
Kepreseutatives, open all the certificates, and the votes shall then bo counted. 

Here three distinct powers are enumerated iu connection with the 
act of counting. The President of tlie Senate, the Senate, and the 
House of Representatives, to each of which ditfercMit minds ascribe the 
power ; while, as the language does not esiiecially tix the power upon 
either, it is contended by other minds that the ex[)res.sioii ''.sliall then 
be counted" leaves the power in Congress to determine by a law, 
"providiug for the general welfare " or to "execitte this Constitu- 
tion," how and by whom they shall be counted. 

Growing out of these various ideas, various plans have been from 
time to time suggested by diti'erent legislators. The various plans 
may be summarized as follows : 

First. That the President of the Senate slu^ll count tlie votes. 

Second. That the two Houses of Congress shall count them in their 
separate capacity ; and this idea is subdivided as follows : 

1. When the two Houses do not concur iu counting the vote of a 
State, it shall be rejected. 



10 

2. That the vote of all States shall be counted unless both Houses- 
aj^ree in rcjectiiij^ it. 

Third. That, in ca-it- of a disagreement between the two Houses as 
to liow a vote sliall be counted, the disputed «iuestion shall be sub- 
mitted to an ulterior tribunal. 

Fourth. That the vote shall be coupted by the two Houses in joint 
assembly, the members of each voting indiseriminately, either ptr 
Kipita or by .States. 

Former lejrislators have forliorn*' scttlini; this (|ui'sti(iii by a tixed 
law, and that delicate ami imiiortant duty is now devolvctl upon us. 
Heretofore the mode has been uniuiiMU'tant because the a<loption of 
either one would have produced the same result as if either of the 
others had been selected: but at this time the very mode becomes 
vital, as the result would be ditt'erent uiuler the operation of one i>lan 
than UTidcr that of another. Yet we, as legislators, representing the 
jieople. and not i»arties, should disi'ard all partisan feeling, overlook 
all ]iarfisan results, and settle this (|nesti<in only in the lights which 
are thrown upon it by tlie C<nis!itution, the i)recedents of the jiast, 
and the i)atriotic titterances of statesmen, made when party feeliiig 
could not have actuated them. 

With these axioms then, let us approach the great work which lies 
before us. We will examine these vari'-ns plans, or modes, in the 
order I have enumerated them. 

SHALL Till-: VlCE-ritESmEXT COL'XT? 

TheConstitution invests this officer with certain enumerated powers 
in reference to the electoral vote. They are these : He shall be their 
custodian, and he shall open them in the jtresence of the Senate and 
House of K'epresentatives. Here the enumeration ends. The uni- 
versal law of construing constitutions, statutes, and contracts is that, 
where certain ])owers are expressly enumerated, all others are, l>y 
implication, excluded. In the leading case of Field rn. The People, 
rej)orted in "Jd Scam., page 7tl. this ]trincii)le is fully indorsed. Chief- 
Justice Story, in his work n{)on the Constitution, in section 448. says: 

There can be no ilmibt that an alliinative {n'aiit of power, in many ca.'ses. ■will im- 
7>ly an exchision of all otliiTs ; as. fur instame. the Constitntiou deelares that the 
power.-* of Con^iiess shall extenil to ci'rl.aiii eiinnn'i-atetl casi's. This siietitii'ation 
of particulars evitlcntly ixthiili-s all pretensions to a }:i-niTal lt'<rislativi- atUhoritv. 
And wliy ? 15eran.se an atlirniative ;;rant of sjiceial powers would be alisurd a.s well 
a« useless if a {general authority were intended. 

In fidditiou to this general principle, the fourth subdivision of sec- 
tion 'A of the iirst article of the Constitution prohibits him from 
exercising all or any pt)wers except todecide a tii- vote in the Senate. 
It says: 

The Vice-1'resiileut of the United States .shall be Pre.sident of the Senate, but 
shall have no vote, unless they be e(iually divided. 

The language of the Constitution is : 

The President of the .Senate Hhall. in the presence of the Senate and House of 
lU-lire.sentatives, open all the certiliiates and the vote.s shall then bo couuted. 

An analysis of this exi)ression, according to the laws of the English 
language, will not permit such a construction. 1 lad the ant hor intended 
to invest that otlicer with tlu' i)ower of counting the votes he woubl 
have said "oiien all the certilicates and count tin* votes." Ibit he 
does not say this. To the contrary, he says jilainly eiiongh that he 
shall open them, and they shall be counted by some other in-rson or 
persons. The sudden turn of language, the change of mode ami tense 
after the conjunction " and,"' i>lainly assures us that the mind of the 
author had passed from the President of the Senate to some other ob- 



11 

ject. Had ita<ij,Tin reverted to that otticerthcrc wonldbave Iw-eii added 
the words "by him," and it would then have read, "open all the cer- 
tificates and the vote shall then be counted by him." The total al)- 
sence of expressions tantamount to this leaves no doubt in the mind 
of the scholar as to the intention of the framers of that instrument. 
The precedents of Congress are all against the doctrine of clothing 
the President of the Senate with such extraordinary jjowers. lu every 
instance the two Houses have maintained a controlling power over the 
count, either by joint resolutions or by directions during the progress 
of the count ; and this power has invariably been denied by the Presi- 
dents of the Senate themselves. In the year 1797, upon making the 
announcement that otiticer said : 

In obedience to the Constitution and laws of the United States, and to the com- 
mands of both Houses of CoujiTess. expressed in tlieir resolutions jiassed in tho 
present session, I now declare that John Adams is elected President, &.c. 

And such was the unbroken practice down to the year 1865, when 
Congress enacted the twenty-second joint rule, which put the power 
unquestionably in the hands of the two Houses, and under which tho 
presidential vote was counted in the years ISGu, 1869, and 1873. 

Now let us examine the views of statesmen who have exx>ressed 
themselves upon this important branch of our subject. 

In the year 1857 that great constitutional lawyer and i)atriot John 
J. Crittenden, of Kentucky, said : 

I wish merely to say that the sense of duty, an honorable sense of duty I have no 
doubt, upon which the presiding officer has acted iu assuming to declare the nuni- 
Vkt of votes, involves the privilege of detenuiniug a presidential election and saying 
who shall be President. I piotest against any such power. 

During the same debate many others whose names are now famous 
among the patriots of that day denounced this assumption ; but I 
will select only that of Humphrey Marshall because it is clear and 
emphatic. He said : 

Still, I am sure that the duty of determining whether a vote .shall be counted be' 
longs to the Senate and House, aud not to the President of the Senate ; and it is a 
duty I insist we should perform before the vote shall be counted. The House and 
Senate do not i)lay the parts of automata, nor are they mere lookers-on at a spectacle 
in which the President of the Senate is sole performer. 

In the year 1869 this same question arose in Congress, aud again 
this power was denied that officer by all who spoke on the question. 
From among these I only select that of a gentleman then upon this 
floor, but since promoted to a seat iu the United States Senate, Mr. 
BouTWELL, from Massachusetts. He declared that — 

The President is not clothed with the power by any possible construction of the 
Constitiition : the Supreme Court is not clothed with the jiower ; there is no gov- 
ernmental instrumentality that can be nameil that has this ])ower excejit the Sen- 
ate and tlie House of Kepresentati ves. We all agree that under some circumstan- 
ces thi.s power ought to be exeicised. We all agree that the Constitution contem i 
plates purity, justice, not fraud or wrong. 

In the year 1873, while the Senate was maturing a plan for di.s- 
posiug of this vexed question, Mr. Trumbull, then a Senator from tho 
State of Illinois, in reply to Mr. MDiMox.of Indiana, dealt with this 
power as follows : 

In the first place, I do not agree with the Senator from Indiana as to tlie power of 
the presiding officer of tlie Senate over the electoral vote. Tlie Constitution of the 
United States directs that the President of the Senate shall open the votes in the 
presence ot the two Houses, and then .says "and the votes shall then he counted." 
That is not such language, it seems to me, as the framers of the Constitution would 
have used, who were .so very ]irecise aud particular in every phra.se in all the in- 
strument, if they had intenileAl that the President of the Senate shoulil deteimine 



12 

as to the validity of those votts. The langnase thru would be. not that the Pres- 
ident of the Senate .-ihall ojieii the votes, but that he shall opeu and count the votes 
lu the presence of the two Houses. 

Ajjain, in the year 1>75, the same question was before that body for 
deliberation, and tht- di.seus.sion was careful, tlionrnj,'!!, and patriotic, 
fn-e from partisan bias and party feeling. Then Mr. Coxklixg, the 
<listinjj;nished Senator from New York, said : 

Eeturning for a moment to these words in the Con.stitution. we find that the 
Pii-suli-iit lit the .Sc-nate is to do iiiitouf thin^, which is to ojien, and of course man- 
ually to present and be tlie custodian of. the returns uixm which the election is to 
dt-pend, which an- calli-d in this provision of the ('onstitutiou -the crtiticates." 
Then we find tlie lanj:uase chanu'fs, and it ordains in most mandatorv phrase that 
■•the votes shall then be counted." There, I submit, is appropriate domain for lep- 
islativp discretion, either l>y leirislation or by a joint rule, if concurrent action be- 
tween the two Houses rather than by legislative action be preferred. 

Nor was he alone in the expression of the.se views, but was sup- 
ported by the ablest men in that angu.st body. Among others who 
thus expressed thein.selvos was that venerable Senator from New Jer- 
.sey, Mr. Fiu;LiXGinv.si;x, than whom few are abler or more compe- 
tent to read correctly the great charter of our liberties. He asks and 
answers this grave question : 

AV ho is to decide this (juestion ? Is it the presiding ofticer of the Senate, who mav 
be a mere member of this body temporarily presidini,' and who has not been elected 
by the iieojile ! Is he, because by the Con.stitution he is m.ide the medium of com- 
niunicatiiifi the vote to the .Senate and to the House, to have the ix.wer to receive 
and count these votes, and is there no j)0wer to coutr<d him .' His duty is emled, sir 
so far as the Constitution imposes it, when, in the jiresence of the Senate ami 
House of Itepresentatives. lu- oi)ens the ct-i tificates. Thai is all he is authorized 
to do by the twelfth amendment to the Constitution. 

And, most important of all, Mr. Morton, of Indiana, then took 
strong ground against this power being vested in that otlieer. an i 
clearly exjilained his functions under the Constitutimi. No argu- 
inent, no elucidation could be clearer, could be more forcible. Hear 

liiiu : 

If. when the Senate comes to decide the question which is the correct return 
if there is a tie vote in the S»-nate. and the Vice-President is presidiu" not as 
President pro tempore, he can cast a vote in that ca.se, decidiim the (nu-stiou in the 
Senate; but there is no provision in our ("oustitutiou autlioriziui: th<- Vice-Piv.si- 
d.-nt or any other odict-r of Government to come in and settle the question 
wlieii- the two Hou.ses disagree. If tliere is a tie vote in the Senate, the Vice- 
Presidt-nt can ca.st the deciiliiig vote; but it is not in conforniitv witli the spirit of 
our Constilution to jnovide tor some olbcer wlio shall .stttle between the two 
Hou.ses whi-u thi-y di.sagree. Therelore it seems to me that this ]in. vision is a 
iii:itterof necessity. You have got to have this disputed question somewhere, 
and is it not saler, is it not more democratic, more republican, to leave it to the 
two Houses than to any single olHcer ( 

Wo need not pursue this subject further, but close with this re- 
mark : To clothe the I'resident of the Senate wiih such unlimited and 
<l,iiigerous power would be making him more potent than a king: it 
would enable him to override the wishes of the people, trample njion 
the liallot-box. destroy the ellieiu y of eleclion.s, and subvert the very 
jninciples of republican government. .Surely no party, even as the 
last resort to maintain its existence, will (lare imiugurate such a 
scheme. 

THE SErAllATE ACTION OF TUK TWO IIOl'SES. 

This power then not residing in the President of the .>=ienate it must 
rest either in the two Houses acting sep;nately or jointly ; and we pro- 
ceed to consider the elloet of thi- separati- actioii iipoii the proposi- 
tion that, when the two Ilon.scs do not both agree to the counting of 
a vote, it shall be r»'jeeted. 

This proposition carries with it as a natural conseiiuence the power 



13 

to refuse to count tlio vote of a State ; in other words, the power to 
disfranchise a State, even though its vote may have been cast in full 
compliance with the Constitution, simply for political or partisan 
reasons. True, we should not presume that gentlemen acting under 
the serious restrictions of a solemn oath to obey the Constitution 
would exercise such a power without warrant, yet the danger of its 
being done exists and this forms a strong, though not conclusive, ar- 
gument against the adoption of such a principle. 

Yet this must be regarded as far preferable to that proposition 
which estciblishes the converse of the rule and enacts a law which 
counts every vote that shall be presented by the President of the Sen- 
ate, unless both Houses agree that it shall not bo counted. Such a 
proposition, if it stands at all, must stand upon the doctrine that its 
very existence — no matter by what illegal or unconstitutional means 
it attained that being, no matter how much it may violate every 
principle of law or the Constitution — gives it the power of a vote, 
and that it shall so remain unless both the separate judges shall bo 
forced by the overwhelming power of its enormities to acknowledge 
its invalidity. In this particular the principle violates two other prin- 
ciples of law and reason. 

The act of counting presupposes the right to exercise the judg- 
ment, reason, and discretion in determining what shall and shall not 
be included in the calculation. The plan under consideration under- 
takes to settle the question beforehand. Again, it is a well-settled 
principle of legal jurisprudence that where two judges are called 
upon to determine the admissibility or correctness of a matter com- 
ing before them, it cannot be admitted or afiirmed unless both judges 
agree to admit or atlfirm it. This plan permits the vote to be affirmed 
or admitted unless both agree to its rejection. A rule so contraiy to 
principles governing all other courts and tribunals must be received, 
if received at all, with forebodings of danger. Many of our best 
statesmen have put the brand of their disapproval upon this pro])osi- 
tion and declared it inimical to our highest and best interests. Sen- 
ator Frelixghuysen took ground against it in 1875, and, contrasting 
it with the hrst proposition I have discussed, said : 

Even this rnle would not remove entirely the temptation ; for the House by not 
joining the Senate in rejecting improi)er votes might so ali'ectthe result that noono 
'would have a majority of the whole number of electors ajipoiutcd, and thus the 
election would go to the House. 

Senator Edmunds, on the same occasion, forcibly put the wrong of 
this princii^le when he said : 

Let me suppose .another case. Suppose the paper that the Vice-President receives 
and opens to be counted according to the Constitution is not the vote of Vermont 
at all ; that it has been sent as the vote of Vermont from the State of Indiana; 
nevertheless, on this rule, unless both Houses concur in saying that they will not 
have the State of Indiana vote for Verniout, she votes. 

Again he says of this principle : 

It is in effect to say that any spurious or revolutionary vote which may be brought 
forward from i>e()ple pretending to be electors of a State shall be counted, un- 
less both Houses agree that it .shall not. It is not brouglit forward for decision, but 
it stands, because it comes as the authoritative voice of the people, until both Houses 
concur in saying it is not a vote. 

But the error of both these rules is more readily seen in cases where 
two sets of returns are sent in from the same State ; in which case the 
tirst vote opened would be counted, or both rejected ; and this, too, 
notwithstanding the tirst vote may be the very one which is without 
law and wholly unconstitutional. Senator Th'uij.man, of Ohio, states 
the case in its true light when he says : 



u 

The moment you hare decided, either by the diflference of the two Houses as to 
the couutiii}:of theretunisoriu any other manner, that that return shall be counted, 
the vote of that State is ;riven and no other vote from it can be received. Can there 
Im? anythinj; ck-ai-er than that 1 Suppose there be two returun from Louisiana, one 
of them is i)reseuted and an objection is made to its count. The Houses separate, 
and one of the Houses decides that it shall be counted. "Would it not be counted 
then ! Ko one will saj- no. Then suppose tin- other return is presented. "What is 
the objection to that ? "We have counted Louisiana oni-e: we cannot count her 
again. We have jjiven her all the votes to which sh«' is entitled ; we cannot receive 
any further returns from that Statu." But now, if by our act we make a ditlerence 
of opinion between the two Houses equal to a jiulirmeut of both Hou.ses in favor of 
the reception of a n-tum, it is just as juain as that two and two make four that when 
you have counted one return the matter is res adjudicata, and you cannot count 
another. 

But Senator Mortox. in a lecont speech in the Senate, disclosed 
the most dan^^erous feature of this rule by showing clearly that it is 
Init a renewal of the claim for the power to rest iu the hands of the 
President of the Senate. He said: 

I do not understand that this rule, in its present form or in the new form proposed 
to be jiiven it. takes away what I believe to lie the power of the Vice-President. 
The Constitution says that the votes of the electors shall be sealed up and sent to 
the President of the Senate, and he shall ojieii them in the presence of both Houses, 
and there are two sets of returns : he biinus foiward one set and keeps the other; 
how will you f;et the other .set out of his hands .' Wliat j)ower have you ' He is 
only retmired to produce the set that does represent tlie xnlv of the .'^tate ; he is not 
required to ])rodiu-e both packages ; he is only requirt-d to produce tliat package 
which does contain the electoral vote of the State. Therefore he may e.\ercise liis 
iudpnent upon that, and you have no ))ower for objection. You caniiot go behind 
"liim. That shows the necessity for an amendment of the Constitution. This rule 
cannot change that. It does not undertake to chrtuge it. It simply jtrovides for 
objections on such pajiers as he does present and as are opened to be counted. 
That is all there is of tliat. 

Thus lieinjj driven by the force of loj^ic and by a fair construction 
of the Constitution from the position that the President of the Senate 
should coutit the vote, its advocates tnidertake to accomplish the 
same pnrpo.se by investing him \vith the ])o\vcr to. judge which set of 
returns he shall opcu ; and this. too. under the cleceptive pretense 
that the two Houses aie conceded to have the exclusive power to 
count. 

Certaiidy no f;iir-minil('d gentleman in cither Hall of Congress can 
Lave the audacity to insist upon the entorcemcnt of a proposition 
80 destructive in its force and etlect. 

SHALL THE POWEU HE PELECATED ? 

Theorizers and specnlators liaving thus devi.'^cd three .separate plans 
for disposing of the subject niidt'r consideration, and each of these 
havino; their disadvantages and unconstitutional features, other the- 
orists nave conceive<l the fourth plan, to which I have before alluded. 
And this last plan is virtually to take all power of counting froiu 
Congress and jilace it in the hands of a commission to be rai.sed for 
thi^t jiurpose. This jilan lirst made its appearance in Congress in the 
year IKMt, and no doubt was suggested by the fact that theretofore 
three tellers had been selected to do the clerical work in counting the 
electoral vote. 

It w as first ofl'ered and pressed in that year by the federalists then 
liaving a majiuity in both the Senate and liuu.se of Kepresentatives. 
The democrats, under the leadi'iship of Jetlcrson, earnestly opposed 
it; Mr. Gallatin championing the opposition in the House and Mr. 
Barbour in the Senate. It failed to become a law. 

Again, in 1^7.'), Senator Ki)Mi".\i>s presented the same plan to the 
Senate, but it there shared the fate of being unceremoniously de- 
feated. At the early part of the present session Mr. llixir.K, of Indi- 



15 

ana. introduced the measure into this House, where it was received 
TTithout favor or even comment. Sucii is its legislative history, and 
such I have no doubt would have been its end had it not been for the 
circumstances surrounding us, which, calling for a committee of con- 
ference Ijetween the two Houses, placed Mr. Edmunds at its head, 
who, as all men will, urged his own favorite idea upon the committee; 
a committee which, beside him, was void of anv plan of flieirown, or 
were gifted with less ability to urge it. That 'committe*; havin<r're- 
ported this measure to the two Houses, aud being thus backed "md 
urged on under the cry of "compromise." now demands an attention 
which it otherwise would never have commanded. 

The plan proposed by the committee submits the counting of all 
disputed votes to a commission composed in part of individuals out- 
side of either House of Congres.s, and thus to a tribunal not enumer- 
ated in the Constitution. Without entering further into details, the 
question presses itself upon us, Is such a procedure constitutional ? 

In the outset it must be admitted that at no time in the hundred 
year s of our national existence has this plan been adopted, andthere- 
fore we have no precedent to support its claims to constitutionality. 
The precedents are all against it. It is further admitted that nowhere 
within the lines of the Constitution is such a tribunal for such a pur- 
pose provided for. The point upon which its friends hold it to be 
constitutional is that Congress has the power to provide any mode 
and manner or form of counting the electoral vote which may please 
them. They say that the expression in the twelfth amendment, " aud 
the votes shall then be counted," is a casus omissus, and that the pro- 
vision of the last subdivision of the eighth section of the first article 
of the Constitution enables them to make a law filling up this asserted 
omission. That provision, in enumerating the i)owers which Coh'tcss 
shall possess, says : ° 

To make all laws which shall be necessary ami proper for carrvin<r into execution 
the foregoing powers, and all other powers vested by this Constitiuion in the Gov- 
■ernment of the United States, or anj- department or ollicer thereof. 

But if the plan is unconstitutional, it is so for reasons not touched 
by this provision at all. It is uncon.stitntional because the power to 
count the electoral vote is expressly and therefore exclusively vested 
in Congress, and cannot be delegated by it to any body of men out- 
side of its number. Every argument which ever has been or ever can 
be made in favor of the proposition that Congress has the power to 
count the electoral vote also establishes the principle that the power 
has been delegated to Congress. The one proposition follows the other 
as an irresistible consequence. If Congress has the power to count, 
that power has been delegated to her and she must count. If the 
people have delegated that power to her, they have delegated it to 
no other tribunal, and they have nowhere empowed Congress to erect 
any such other tribunal. 

The Supreme Court has twice decided that the first section of the 
third article only empowered Congress to establish law ami equitv 
-courts, as is plainly conveyed by the language of that clau.se : 

The judicial power of the United States shall be vested in one Supreme Court, 
and in such infeiior courts as the Congress may from time to time ordain aud estab- 
lish. 

Certainly no man will be so insane or presume so much upon the 
ignorance of others as to contend for a moment that the commission 
now proposed to be raised is a court, that it is a bodv for the hearing 
and trying of causes between litigants. Who are the plaintitls and 
defendants, the relators aud re.spondents ? But if it were a court, 



10 

Congress could uot invest it with jurisdiction over a subject expressly 
delej^ated to itself. Tlie lansuafje of the twelftii ameudnient, which 
I have already (jiioted, jdaiiily intends tliat C'onirress Siiall, and sliall 
tlien, count the vote : not after tlie certilicates shall have lieen opened 
for days and passed out of its Jiands into the custody and hands of 
stran^'crs, but then, at the time the certificates are' opened. This 
plan permits days and weeks to pass before the votes shall be counted, 
and i>ermits the counting to be done not in the presence of both 
Houses. 

Certainly this is not merely an infraction, but it is also a fatal vio- 
lation of the Constitution. Nor do I stand alone in this dechiration. 
Fortunately this subject has received the attention of our statesmen 
in calmer and better times than these, and they have fjiven us their 
views ujion it wlieu there were no party ends to be gained or lost by 
its adoption or rejection. Their convictions under such favorable 
auspices should be of value to us now. In 1-7."). while discussing the 
Edmunds substitute proposing this plan, Mr. Boutwell in the Senate 
said : 

I ajn-oe entirely with the .suggestion made by the lionorahlech.iimian of the com- 
mittee in rf'gard to the power to count the votes and the dutv to count the votes, 
that one was conferred upon Congress and the other enjoineil u]inu Congress. The 
jiower and the duty are in Congress. Congress must exercise tlie power and per- 
foim the duty, and it is not possible under the Constitution to transfer it to auv 
body else. 

Again, speaking upon the same subject, be remarked : 

The President of the Senate is not clothed with the power bv anv possible con- 
struction of the Constitution : tlie Supienie Court is not clothe"d witli the power; 
there is no "roveniniiiital instruiiientality which can be named that has the power 
except the Senate and House of Representatives. 

Mr. MouTO.v at that time asserted that this power could not even 
be delegated to the Supreme Court. These are his emphatic words: 
Tou cannot take it into court ; that is certain. 
And again he said more at length : 

In tlio lirst place it is a pl.in that is unknown to any plan of legislation which we 
have. • • • And it involves another danger jxrhaiis eijual to that in its charac- 
ter: it leaves the detenuiniitiou of this great tiuestion to eight nun. or rather to a 
ni.i.iority of eight men, which would be five. You substitute the judjjment of 
eight men, or a majority of them, for the judgment of the two Uouse-s. 

Mr. Howe was no less decided in bis convictions upon this question : 

I will give my own oj)iuion. >Iy own oi)inion is that it cannot be delegated ; and 
therefore, if I were driven to the conclusion that the decision of this grave ques- 
tion, this momentous ()u<'stion. this i)uestion upon which, under conditions entirely 
conceivable, may hang the issues of civil war— if I were driven to the condusioii 
that that is a legislative question, I should say that, when the (iiiestiou arises which 
f>iie of tliesL- l.tttis from Ithode Island shall be respecti'il as the voice of l:hode 
Island, it must be settled either by the joint couveuliou or by the several Houses 
acting separately; nor can it be left to arbitration, no matter'who may be the arbi- 
trators. 

Mr. Freuxghlvskx, while discussing this plan in the Senate, also 
remarked : 

I think the twelfth amendment to the Constitution settles who has Jurisdiction 
over this riuestioii. It does not do .so in express terms, but it does so bv necessary 
implication. That by neces-sary implication, to my mind, gives the jurisiliotion over 
this subject to tin- two Houses, anil if the Const it u't ion does give it to the two Housc» 
we cJiunot by law give it to the judiciarj of the country. 

Mr. D.vwKs, of Massachusetts, also took strong ground against it. 
He said : 

AVhether the President of the Senate could be tnisted. or whether the gentle- 
men selected in the amen<lnient of the distinguislied Senator from Xew Jersey 
could be, or those high chantctenj who constitute the Supreme Court of the United 



17 

' States, (which is, in my o])iiiion, the best of all tlie amendmenta,) it is enou<'h to 
niY miiKl that they have no other anthoiity to designate a President of the United 
States than that which they derive from this statnte, and that, while the Consti- 
tution of the United States took wliat its framers thouirht was all necessary pains 
at that time to guard and secure the selection by the people of a President it has 
been left to us here to discuss the question whether by a statute wo cannot' safely 
designate a man or men who will select for us a Presid<>nt of the Unit<"d States 
Sir, that is such a departure from tlie Constitution that I cannot vote for it. 

He continues, without hesitancy, and, reaehin^c the point where it, 
appears e\ident the vote must ultimately be decided bv tlie one man 
who shall constitute a majority of the commission to be selected, he 
declares : 

If there were no objection, it is a power reposed in one man or in ten men how- 
ever high their character, that it would not be safe to confer. It is in violation of 
all the analogies and all the theories upon which the Government itself is ba.sed, 
and it would be the strangest anomaly, in what would otherwise be called a free 
Government of the people, that, although in all things else the nation and the Con- 
stitution had studied to give effect to the voice of the people, we had here deliber- 
ately, by a short section of three lines, selected a man and clothed him with the 
power of saying who shall be the President of the United States. 

These opinions, it will be said, are from gentlemen composed of one 
political party only, and should therefore be received with caution. 
But, sir, this was not a partisan view of it ; there were gentlemen, 
distinguished gentlemen of both political parties, who took early oc- 
casion to denounce the iilau as unconstitutional and extremely dan- 
gerous. Let us now look to the views of the gentlemen on the other 
side of the Senate Chamber. First, Mr. Bayard, of New Jersey, con- 
demned it. He said : 

There is no distinct provision as to that. They .shall be simply counted in the 
presence of the two Houses ; but I apprehend from the fact of their being counted 
and the result declared, that the members of each House are simply witnes-ses to 
the count and tally of that vote. Thatyoucouldnot delegate that power to another 
body I cannot doubt. 

Mr. Thurman, of Ohio, was no less decided in his views, as here 
expressed : 

But there was one branch of the remarks of the Senator from Vermont [Mr. 
Edmunds] upon which I wish to say a word because, -nith great respect for his 
opinions, I am unable to concur with him, and that is in regard to the idea ex- 
pressed bv him that the election of a President of the United States may be made the 
subject of a contest in the courts of the United States. To this view I entirely 
dissent. 

And afterward, pursuing the subject more in detail, he said : 
I do not see. therefore, that you can confer this power upon the supreme judges 
as judges sitting as a supreme court to decide this question, becau.se it is not a 
judicial question within the meaning of the Constitution, and to say that you could 
confer it upon them as mere individuals is to say that you can confer it iipon any 
other nine individuals in the United States. 

And, as if determined not to be misunderstood, or as if extremely 
anxious that the unconstitutionality of the plan should be deeply im- 
pressed upon the Senate, on the 16th of March last he repeated his 
position : 

I do say that the spirit of the Constitution requires that this ni.atter shall bo 
settled, if it is possible to settle it, by the Senate and House of Representatives, 
either acting separately or in joint convention. Either one way or the otlier the 
Comstitution requires that it shall be settled in that mode. * * * And it seems 
to me that it never was contemplated that the deteimiuation of any questiim which 
should arise upon that count shquld be decided by some other tribunal or body of 
men. 

Mr. Stevenson, of Kentucky, was no less pronounced in liis convic- 
tion as to the unconstitutionality of the plan to delegate this power 
to any body, and in discussing the proposition to delegate to the 
2 ca 



18 

President of the Senate the power of ca.stinji the deciding vote on all 
questions whicli the two Honses may dili'er in, he said : 

I voted against the amendineut of the Senator from Xew Jersey, [Mr. Fbeliso- 
HUYSKS,] not only because we. ui myjiultaucnt, have no constitutional jxm-er to select 
an aibitnitor to (k-ciik- a prcsidcutial question, but also for reasons of obvious im- 
propriety if the power existed. 

Senator Jounstox, of Virjrinia, lays down the true doctrine in the 
following extract from his speech in'the Senate on the *22d of March, 

1876: 

The members of this body and the meml>er8 of the House of Representatives were 
elected bv the people piirtly to perform this very function. Thev were cho.sen for 
the pui7)ose. anions' others, of deciding who in a certain coutih^zeucy should bo 
President and Vice-President. When the i)eople voted for them they delejiated 
them to fulfill tho.se duties ; they elected them for that purpose a.s well a.s other 
punio.se8 : and when we leave th'e question with the men thus elected bv the people 
■we leave it whei-e republican government ought to leave it, with the i)e'opleor with 
the i-epresentatives of the pe<jplo. But if we take it awav ft-om them and give it 
to nine other men never selected by the peojde, knowing little of the peojOe. ueces- 
Siirily by the very nature of their functions and duties removed from the people 
and in no sense representing them, we get the decision of that great question away 
from a rejircsentative body of men to a body never elected bv the jieople and hav- 
ing little connection with them. I can imagine no proWsiim "that would be further 
from the spirit of the Constitution and of our republican institutions, unless it 
would be to select six or eight of the ministers who represent foreign governments 
in this city and let them be constituted a court to decide upon this question, 

Mr. Mkkkimox, the able Senator from Xorth Carolina, assumed the 
same i>o.sition and on that day asserted that — 

The exclusive .jurisdiction is in Congress ; and I think so for reasons which I will 
not now detain the Senate to express. Entertaining that view, we have no power 
to delegate to the President of the Senate or to the Supreme Coiut, or to commis- 
sioners, or to any tribunal what.soever, the right to decide any controverted question 
arising upon the count of the vote. 

I have thus selected an equal number of gentlemen from both polit- 
ical parties who have declared their convictions of its radical uncon- 
stitutionality; but I cannot chise the.se quotations without citing the 
views of Senator CoxKLlXG, of Xew York, who is now distinguished 
ae the leading friend of this measure in the Senate. On the li-'uh day 
of February, IS?."), in a .speech in the Senate on this same question, he 
said : 

It may well be doubted whether we have power to do anv such thing. Congress 
may do whatever is committeil to it as a Congress. Kitlier House orlKith Hoases 
may do whatever is committed to them ; but Congiesa cannot delegate to anybody 
else legislative power or any other power which is reposed in Congress and located 
there and iKiwhere else. 

In examining the vote in the Senate on this proposition, given on 
the'25th in.staut, I discover that tiiany of the gentleuieii from whom I 
have (juoted voted tor the bill, and tlius against tlieir foriner convic- 
tions. I shall not attempt to account for this manifest inconsist- 
ency. I expect many gentlemen upon this lloor to vote for the lueas- 
iire who are thoroughly convinced of its unconstitutionality. I wish 
it were otherwise. I should have stronger and brighter ho|><'s of the 
future of my country could 1 be assured that its legislators would 
never consent to a viidation of that sacred instrument, tiie Constitu- 
tion, sinqily because the masses, alike ignorant ami regardless of its 
provisions, demanded it. For me, sir, the cry of the rabble and the 
howls of tile moll have no ternus. In their calmer moments the peo- 
l>le have selected me to adjudicate this (juestiim formvself and to ex- 
ecute that Constitution. This duty I shall do fearlessly, and it shall 
never be said of me tliat 1 knowingly committed a great wrong in 
violating the .safe jirovisions of thepeople's bulwark in the vain 



19 

hope of relieving them from an imagiued iucoiivenience or even dan- 
ger. I hold their highest safety lies in the safety of that instrument. 

This measure is urged u^ion us as a compromise. What is to be com- 
promised ? If I am to compromise any rights which this House — the 
House of the people — has under the Constitution, then I tell you I 
shall oppose it. If lam called upon to compromise any rights which 
belong to the majority of our people as expressed at the ballot-box, 
then, sir, I oppose it. If I am called upon to compromise any honest 
conviction I possess as to the result of the recent election by the peo- 
ple, then I oppose it. If I am required to compromise the unconsti- 
tutional claim that the President of the Senate has the power to count 
the electoral vote, then, sir, I shall opj)ose it, because I shall never 
trifle with so dangerous and destructive a doctrine. I demand that 
it shall be frowned down, voted down, and trampled down by the 
people. AVe were not sent here, gentlemen of the House of Repre- 
sentatives, to trade off, sell, or barter any of these high, important, and 
vital questions. Our duty is to meet the false assumptions of power 
which are set up by the enemies of popular government, and beat them 
back with mailed hands, if need be ; not to cower and flinch before 
them. 

No man can favor this bill simply because it is constitutional. He 
must do so, if he does at all, with the expectation of deriving some 
partizan advantage fi-om it. The republican does so expecting it wiU 
result in the election of Mr. Hayes ; the democrat does so expecting 
it to result in the election of Mr. Tilden. It is evident that someljody 
will be deceived, somebody will be cheated by the bill. It cannot 
but be a cheat and a fraud ; it cannot but produce murmurs and dis- 
satisfaction when its full results are made known. Like all other 
attempts to barter awaj- great principles at the expense of the Con- 
stitution and thedictatesof enlightened judgments, it will ultimately 
but awaken the indignation of an outraged people and the condem- 
nation of an honest public. Such was the fate of the compromises of 
1820 and 1852. 

No gentleman should giA' e this measure his support without under- 
standing fully the eftectof what he is doing. It will constitute a com- 
mission composed of hf teen individuals. Seven of these will consist of 
one political party and eight of the other party. The odd-numbered 
man must be selected from the four supreme j udges not designated in the 
bill. Of these four, three are pronounced republicans, namely, Brad- 
ley, Hunt, and Swayne, and Mr. David Davis, who has little or no poli- 
tics. Mr. Davis, having just been elected to the United States Senate, 
would not be offered a place in the commission and would not accept 
it if he were. The choice, then, must fall upon a republican. A re- 
publican then will decide every controverted question coming before 
the commission. Our democratic friends have bitterly opposed the 
idea of putting this power in the hands of Mr. Ferry, President of the 
Senate, simply because he is a republican, and yet they now propose 
to vest this same power in the hands of no less a partisan than he. 
What matters it whether Mr. Ferry or Mr. Bradley or Hunt or Swayne 
count the vote f You are jeopardizing the expressed will of the peo- 
ple in the hands of the one as well as the other. I cannot and never 
shall consent to trust any one man with such tremendous i^ower. I 
would not even if he were of my own party. 

I have listened, in and out of Congress, to daily denunciations of 
returning boards. My own people have denounced them in unmoas- 
ured terms. Gentlemen upon this floor have howled for hours in mad 
fury against them. Public sentiment everywhere and at all times 



22 



the Senate represents the States. And this forms an impregnable 
artcuiuent against these pretensions of the Senate. 

Viewed, then, in the light of law, in the face of the Constitution, 
and in the impulses of patriotism, the conclusion is inevitable that in 
couuting the electoral vote the Senate and House of Representatives 
should sit as a joint body, governed by parliamentary law, discharg- 
ing its important duties as statesmen, and accepting the result in the 
spirit of patriotism. 



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